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In re Compensation of Kiltow

Court of Appeals of Oregon

April 4, 2018

In the Matter of the Compensation of Gaylen J. Kiltow, Claimant.
v.
SAIF COPORATION; and Portland Disposal & Recycling, Inc., Respondents. Gaylen J. KILTOW, Petitioner,

          Argued and submitted October 25, 2016.

          Workers' Compensation Board 1401336;

          Ronald A. Fontana argued the cause for petitioner. With him on the brief was Ronald A. Fontana, P.C.

          Julie Masters argued the cause and fled the brief for respondents.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*]

         Case Summary: Claimant seeks reversal of an order of the Workers' Compensation Board concluding that he was not entitled to permanent total disability compensation under ORS 656.206(2) (2013) for a certain period of time during which he also received temporary disability compensation under ORS 656.268(10). Claimant argues that he is entitled to both temporary and permanent total disability compensation for the same time period because he purportedly satisfied the elements of both statutes. Held: The board did not err in concluding that claimant was not entitled to both temporary and permanent total disability compensation for the same period. ORS 656.206(2) (2013) provides that a worker shall receive "66-2/3 percent of wages" during the period in which the worker is permanently and totally disabled. Here, the board determined that claimant was entitled to temporary disability compensation for the period in question; therefore, he was not also entitled to additional benefits because he would then receive more than "66-2/3 percent of wages."

         [291 Or.App. 118] GARRETT, J.

         Claimant seeks reversal of an order of the Workers' Compensation Board concluding that he was not entitled to permanent total disability compensation under ORS 656.206(2) (2013)[1] for a certain period of time during which he also received temporary disability compensation under ORS 656.268(10). On review, claimant asserts four assignments of error. We reject the first, third, and fourth assignments without discussion and write only to address the second, in which claimant challenges the board's determination of the date when claimant's disability became permanent. Reviewing the board's order for substantial evidence, substantial reason, and legal error, Luton v. Willamette Valley Rehabilitation Center, 272 Or.App. 487, 490, 356 P.3d 150 (2015), we affirm.

         The relevant facts are undisputed. Claimant became compensably injured in 2008. His claim was accepted by SAIF and closed in April 2011.[2] SAIF then approved an authorized training program and reopened the claim on June 9, 2011. Upon claimant's enrollment in training, SAIF began paying claimant temporary disability compensation in accordance with ORS 656.268Q0).[3]

         Claimant's injury eventually worsened, and his training was put "on hold." On October 23, 2012, one of claimant's doctors, Dr. Baum, determined that claimant had become "totally disabled, " and advised against claimant's [291 Or.App. 119] return to training. Although claimant was no longer actively attending training, SAIF kept claimant enrolled in training and did not close his claim. SAIF continued paying temporary disability compensation under ORS 656.268(10).

         Fourteen months later, in December 2013, Baum determined that claimant's accepted conditions were "medically stationary" as of October 23, 2012. SAIF terminated training on December 19, 2013, and closed the claim on December 23, 2013. In its notice of closure, SAIF awarded claimant temporary disability compensation for the period from June 9, 2011 through October 23, 2012, and permanent total disability compensation for the period beginning October 24, 2012. In January 2014, SAIF paid claimant a lump sum representing back payments for his permanent total disability beginning October 24, 2012. However, because SAIF had already paid claimant temporary disability compensation under ORS 656.268(10) since that date, SAIF claimed an overpayment of those benefits.

         Claimant objected to SAIF's claimed overpayment and requested review by the Appellate Review Unit (ARU) of the Department of Consumer and Business Services, arguing that he was entitled to both temporary disability compensation and permanent total disability compensation from October 24, 2012 through December 23, 2013. In response, SAIF[4] asserted that it was permitted to recover the overpayment because, under Gwynn v. SAIF, 304 Or. 345, 351, 745 P.2d 775 (1987), and SAIF v. Grover, 152 Or.App. 476, 480, 954 P.2d 820 (1998), a worker cannot be both "permanently" and "temporarily" disabled at the same time. The ARU ruled in SAIF's favor. An administrative law judge (ALJ) reversed, ruling that claimant was entitled to temporary disability compensation from before October 24, 2012 through December 19, 2013, and that SAIF was also prohibited from recovering any overpayment of permanent total disability compensation already paid to claimant.

         SAIF appealed to the board, which reversed the ALJ. The board agreed with SAIF that claimant could not receive both permanent and temporary disability benefits [291 Or.App. 120] for the same period. In its written order, the board dealt with the overlap by affirming claimant's entitlement under ORS 656.268(10) to temporary disability compensation through December 23, 2013, and retroactively changing the date at which claimant became entitled to permanent total disability benefits to the following day, December 24, 2013 (approximately 14 months later than the October 24, 2012, date reflected in SAIF's notice of closure). The board explained that

"the determination that claimant was entitled to temporary disability through December 23, 2013 necessarily includes the determination that claimant's disability during that period was 'only temporary.' See ORS 656.210(1). Because claimant's disability was 'only temporary' in duration through December 23, 2013, he was not 'permanently' totally ...

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